Posted: Friday, 3 November 2023 @ 10:43
Is Making A Lasting Power of Attorney Safe For Your
If someone wants to take money out of an elderly person’s Estate,
they can do it without too much difficulty in their capacity as an Attorney as
it is much easier to get away with it using this method than say doing it after
a loved one has died. (e.g as Executor)
A number of years ago the retired senior judge Denzil Lush had warned that the public needs
to be alerted to risks arising from a lack of safeguards in the power of
attorney system. Former Court of Protection judge Denzil Lush said he would
never sign a lasting power of attorney because it can have a ‘devastating
effect’ on family relationships.
Lush is fully qualified to give a view namely he was the
author of the key legal guide to this area, and had judged in 6,000
power of attorney cases.
However, as we all know things can be a little more nuanced
for Jo Public.
Some initial points:
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a useful tool when
people become incapable of running their own financial affairs. An LPA allows
someone, of the donor’s choice, to step in and take control of the donor’s
Because of the great power the LPA gives them, attorneys are
often trusted friends or family of the donor. However, where attorneys abuse
this power, measures must be taken to protect the donor. This is particularly
important when the donor cannot protect themselves or even complain about the
way their attorney is acting.
Adults aged 18 or over with the capacity to make decisions
can make provision for the event that sometime in the future they may lack
capacity to make certain decisions.
This can be done by giving another person Lasting Power of
Attorney (LPA) - the authority to act on their behalf or by making advance
decisions to refuse medical treatment.
People given formal powers under LPA to make decisions on
behalf of adults who lack capacity are bound by the Mental Capacity Act and its
Code of Practice. They have a statutory responsibility to act within the
limits of the powers given to them always to act in the person's best interests.
Adults who lack capacity and do not have such formal arrangements
and require significant decisions to be made may be subject to a best interest
meeting or the issue may need to be taken to the Court of Protection.
may appoint a Deputy to act as decision maker or make a declaration about what
is in the person's best interests.
What Kinds of Lasting Powers of Attorney Are There?
There are two types of LPA: personal welfare and property
LPAs are legal documents and are only valid if completed on
the statutory form
LPAs must be signed by the donor
LPAs should normally name people who should be informed when
it is to be registered
LPAs must contain a certificate completed by an independent
LPAs must name the person (or persons) who is to act as
LPAs must be registered with Office of Public Guardian (OPG)
before they can be used
If registered some time ago and not used, the attorney
should inform the OPG when they start to act under it
LPAs may have restrictions or conditions.
There are some
decisions that can never be delegated to an attorney
Attorneys should never be a professional/paid carer who is
or is likely to be involved in the adults’ care or treatment - the only
possible exception being that they are a close relative
Attorneys can only make decisions prescribed in LPA, and
must carry out the donor's instructions, i.e. they cannot assume decision-making
for any other matters
They may be consulted, if appropriate, over other matters unless
there are explicit instructions not to
Property and affairs attorneys should keep accounts. An LPA
regarding finance would be immediately effective unless the person specified at
the time that this should not occur until they have lost capacity to make
decisions in this area.
What Happens If I do not do Lasting Power of Attorney and Lose
If you lose mental capacity your loved ones may have to go
to the Court of Protection and get a Deputyship order to deal with your financial
affairs. This can be expensive and the Court can impose constraints. Not recommended. The Court of Protection is the specialist court for all
issues relating to people who lack capacity to make specific decisions. The
Court can make decisions and appoint deputies to make decisions about someone’s
property and financial affairs or their healthcare and personal welfare.
Under the Mental Capacity Act, the Court has the power to:
decisions about the personal welfare or property and financial affairs of
people who lack the capacity to make such decisions themselves.
declarations about a person’s capacity to make a deci-sion, if the matter of
whether they can make a decision cannot be resolved informally
decisions in relation to serious medical treatment cases, which relate to
providing, withdrawing or withholding treatment to a person who lacks capacity.
a Deputy to make ongoing decisions on behalf of a person who lacks capacity, in
relation to either the person’s personal welfare or property and financial
decisions about a Lasting Power of Attorney or Enduring Power of Attorney,
including whether the power is valid, objections to registration, the scope of
Attorney powers and the removal of Attorney powers.
The Court of Protection also has the power to:
whether a person has capacity to decide for themselves
declarations, decisions or orders affecting people who lack capacity to make
deputies to make decisions for people who lack capacity
the validity of LPAs and remove deputies or attorneys who fail to carry out
their duties appropriately.
The court can appoint deputies who are adults (8+ years who
manage either the person lacking capacity's property and affairs or welfare
decisions. A deputy could be a family member or a professional (though not a
paid carer directly involved in the care or treatment of the person)
The scope and limits of a deputy's authority will be clearly
determined in the order of appointment
Deputies must act in accordance with all the act's statutory
principles, especially best interests and have regard to the code of practice.
What Are the Deputyship Fees?
You must pay a fee to apply to be a deputy. You must also
pay a supervision fee every year after you’ve been appointed.
When you apply
You must pay a £371 application fee. Send this with your
You need to pay the application fee twice if you’re applying
to become both types of deputy.
You will also need to pay £494 if the court decides your case needs a
After you’ve been appointed
You must pay an annual supervision fee depending on what
lev-el of supervision your deputyship needs. You’ll pay:
£320 for general supervision
£35 for minimal supervision (if you’re a property and
affairs deputy managing less than £21,000)
Your annual supervision fee is due on 31 March for the
You’ll also need to pay a £100 assessment fee if you’re a
What is The Office of the Public Guardian?
The Public Guardian is responsible under the Mental Capacity
deputies appointed by the Court of Protection.
registers of deputies, Lasting Powers of Attorney, and Enduring Powers of
investigating any complaints about attorneys or deputies.
What is the Main Weakness of the Lasting Power of
The main weakness is that it is very difficult to scrutinise
the process while someone is alive and any wrongdoing often only comes to light
after the Deceased has passed. The Office of Public Guardian will not get involved post someone
dying removing one possible method of scrutiny.
The appeal of a Lasting Power of Attorney is that it avoids
the possibility of a Deputyship order(a good thing).
The downside is that if your Attorney abuses your trust, they
may very get away with their financial gains if they are that way inclined. It requires very
effective opposition after the event to remedy this. Thus by all means do a Lasting Power of Attorney but please make a good choice in selection of your attorney(s).